Fontana v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 24 March 1965
• Docket Number: No. 1358,1358
• Citation: Fontana v. State Farm Mut. Auto. Ins. Co., 173 So.2d 284 (La. App. 1965)
• Parties: Peggy FONTANA, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee .
• Court: Court of Appeal of Louisiana

Page 284

173 So.2d 284

Peggy FONTANA, Plaintiff-Appellant, v.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee .

No. 1358.

Court of Appeal of Louisiana, Third Circuit.

March 24, 1965.

Rehearing Denied April 14, 1965.

Writ Refused June 8, 1965.

Roach, Hennigan & Shaheen, by Philip J. Shaheen, Jr., Lake Charles, for plaintiff-appellant.

McBride & Brewster, by William H. McBride, Lafayette, for defendant-appellee.

Before TATE, HOOD, and CULPEPPER, JJ.

TATE, Judge.

This is a tort suit.The plaintiff Mrs. Fontana was injured while riding as a guest passenger.Made defendant is the liability insurer of the host driver.The plaintiff passenger appeals from the trial jury's denial of her claim.

Only two witnesses to the accident testified, (a)the plaintiff, Mrs. Fontana, and (b)S. P. Larussa, the defendant's insured and the driver of the vehicle in which Mrs. Fontana was injured.Both of them testified to the following facts:

Shortly after midnight on April 3, 1962, they were travelling on a hard-surfaced rural highway between Lafayette and Breaux Bridge, Louisiana.The Larussa car, at a speed of about 60--65 mph, came upon another car on the highway driving it the same direction at approximately the same rate of speed, which other vehicle was weaving on the highway.After following shortly behind the weaving automobile, Larussa increased his speed and attempted to pass the vehicle after it veered to the right, partly on the right shoulder.

However, the weaving automobile veered suddenly back towards the center of the highway.Larussa immediately applied his brakes to avoid a collision.The sudden application of the brakes caused Mrs. Fontana's face to be thrown against the dashboard.

Plaintiff-appellant contends that the trial jury was in manifest error in denying the plaintiff's claim under this uncontradicted evidence that her personal injury resulted from an imprudent attempt of Larussa to pass the weaving forward vehicle and his consequent necessity to make a sudden stop causing damage to his passenger, which was a foreseeable hazard of the imprudent attempt to pass the erratically moving forward vehicle.As we will state more fully below, we think these contentions are well-founded.

However, able counsel for the defendant-appellee strenuously argues that the trial jury was entitled to disbelieve entirely the testimony of both witnesses, and that such a credibility evaluation by the trier of fact should not be disturbed on review.In principal alternative, counsel further argues that any sudden stop of its insured Larussa is excused under the sudden emergency doctrine, as having been precipitated by the sudden veering of the forward vehicle back towards Larussa while the latter was attempting to pass it.

As we see it, the fallacy in the defendant-appellee's argument that manifest error precludes reversal is that, irrespective of the trial jury's evaluation of the credibility of the two witnesses to the accident, the plaintiff has preponderantly proved that her injuries resulted from a negligent sudden stop on the part of defendant's driver, while the defendant insurer has no evidence whatsoever proving its affirmative defense that such sudden stop resulted from a sudden emergency not created in whole or in part by negligence on the part of its driver.Under these circumstances, the jury's verdict rejecting the plaintiff's claim is manifestly erroneous, whether it resulted (as the defendant suggests) from an unfavorable evaluation of the plaintiff's credibility, or instead (as the plaintiff suggests) from a mistaken application of the sudden emergency doctrine.

The undisputed facts are that the insured driver suddenly applied his brakes, throwing his passenger's face against the dashboard.This is proven not only by the testimony of the plaintiff and the driver, as corroborated for instance by the nature of the facial injuries and the description of the accident given to the attending physician.It is further admitted by the defendant in its answer to the suit, Articles VII and VIII, in which the sudden application of the brakes is admitted, but is sought to be excused on the ground of a sudden emergency.

The driver of an automobile owes to his guest passenger the duty of exercising ordinary and reasonable care for his safety, and this duty exists with respect to the maintenance of proper speed and control of the vehicle.60 C.J.S.Motor Vehicles§§ 397 and 399(1), pp. 975 and 977.Thus, the driver's unexplained or unexcused sudden application of his brakes, causing injury to his passenger, constitutes negligence.Christian v. Walsh, La.App. 1 Cir.,70 So.2d 733.See also decisions such as Gunter v. Lord, La.App. 3 Cir.,132 So.2d 488(amount of award modified, 242 La. 943, 140 So.2d 11).

The defendant-appellee specifically pleaded that the sudden stop was occasioned by the sudden entry of an unknown driver onto the highway from the right and directly into the defendant's driver's path.Articles VII, VIII of answer.

By the defense of sudden emergency, an otherwise negligent act is held excusable on the ground that the actor was confronted by a sudden emergency not created through his own negligence, so that any misjudgment on his part is excused if consistent with the prudence of an ordinary man suddenly confronted with an unexpected danger.Jones v. Continental Casualty Co., 246 La. 921, 169 So.2d 50, 58.

Sudden emergency is a matter of defense to a claim of negligence, rather than a circumstance the plaintiff must negative in order to prove his claim of negligence.SeePrevost v. Smith, La.App. 1 Cir., 197 So. 905, 915;Kaough v. Hadley, La.App. 1 Cir., 165 So. 748.The plea of sudden emergency is thus an affirmative defense ¹, which must be (ahd herein was) pleaded by the party relying upon it, LSA-C.C.P. Art. 1005, who bears the burden of proving affirmative defenses pleaded and relied upon, Ray v. Martin, La.App. Orl., 117 So.2d 839.

In the present instance, the defendant-appellee produced no proof that a driver suddenly entered the highway, in its path, nor did it even prove that there was a side-road from which such a vehicle could suddenly have come, as pleaded.The defendant-appellee has not borne its burden of proving its defense of sudden emergency, unless the testimony in the record (that of the plaintiff and the defendant's driver) sustains the plea.

As earlier noted, this testimony is to the effect that the plaintiff Mrs. Fontana was thrown forward and injured because the defendant's driver suddenly applied his brakes, when he tried to pass a weaving car, and the forward vehicle swerved back in his path after having first veered right-ward partly on the shoulder.The driver had followed the weaving forward vehicle for a short distance, and Mrs. Fontana had cautioned him that the driver was apparently intoxicated.

We think that the driver was negligent under the circumstances in his imprudent attempt to pass the weaving vehicle and his consequent sudden application of his brakes necessitated when it weaved back towards the center of the road.Negligence is "conduct which creates an undue risk of harm or injury to others; the failure to use such care as is necessary to avoid a danger which should and could have been anticipated."Larned v. Wallace, La.App. 3 Cir., 146 So.2d 434, 437.'* * * (w)hether or not fault exists depends upon the facts and circumstances in each particular case.In determining fault, a common-sense test is to be applied--that is--how would a reasonably prudent man have acted or what precautions would he have taken if faced with similar conditions and circumstances?The degree of care to be exercised must always be commensurate with the foreseeable dangers confronting the alleged wrongdoer.'Brown v. Liberty Mutual Ins. Co., 234 La. 860, 101 So.2d 696, 698.

The driver's attempt to pass the weaving forward vehicle, which was proceeding at a speed of about 60 mph, was negligent under the circumstances.Cf., Felt v. Price, 240 La. 966, 126 So.2d 330.It subjected his passenger to an undue risk of harm...